The reservoir hit a stumbling block this week over obtaining necessary permitting, though it’s not expected to significantly affect the project.
By Alan Riquelmy, Courthouse News Service
A three-judge appellate panel has sided with California Governor Gavin Newsom over the Sites Reservoir project, ruling that a key environmental report meets muster.
Groups including Friends of the River had sued over the reservoir project, claiming it will threaten fish and contribute to greenhouse gases. They asked a Yolo County Superior Court judge to rule that the certification of an environmental impact report for the reservoir was invalid because it didn’t meet the requirements of the California Environmental Quality Act, or CEQA.
The judge in June ruled in favor of the state, leading the plaintiffs to appeal. On Friday, the Third Appellate District panel affirmed the lower court’s decision.
Newsom praised the decision in a statement, pointing to a law he signed that streamlines challenges under CEQA. Under that law, legal challenges must occur within 270 days, when possible. The Yolo County judge ruled in under 150 days. The appeals court decision came 108 days after that.
“We can’t waste any more time with frivolous lawsuits to hold up major infrastructure projects, especially building more water storage,” Newsom said. “The Sites Reservoir project will capture more rain and snow to supply millions of homes with clean drinking water.”
Friends of the River did not offer a comment on the ruling by press time.
With an estimated cost of $4 billion, the Sites project in rural Glenn and Colusa counties will according to water officials help California weather the effects of climate change. It’s expected to raise the state’s water capacity by up to 15%, shore up the ecosystem and add recreation options.
Writing for the panel, Associate Justice Ronald Robie — a Gray Davis appointee — cited case law when stating that the panel’s role was to determine if the environmental report was sufficient, and its conclusions correct. Perfection or scientific certainty weren’t required.
Friends of the River argued the report didn’t use a proper environmental baseline. It relied on withdrawn opinions and didn’t include future updates to an area water quality control plan.
“We conclude neither of these fatally undermines the environmental impact report,” Robie wrote.
The environmental baseline in the report relies on biological opinions from 2019, which haven’t been withdrawn or invalidated — and Friends of the River offered no evidence they were. Additionally, if new opinions are issued in the future, the appropriate agencies will determine if further action is needed, Robie wrote.
Additionally, Friends of the River provided no other option on which the Sites Project Authority should have relied. The group pointed to anticipated new biological opinions that will come from federal agencies. However, Robie wrote that the authority isn’t required to use hypothetical plans that don’t exist.
Friends of the River also argued the environmental report didn’t properly consider alternatives to the project.
Robie found the authority had five alternatives to the project, which kept the reservoir’s location but had different capacity levels, as well as pumping infrastructure and other details. The final environmental report had three alternatives, with varying water diversion levels depending on the season. The authority did model the project using the Friends of the River’s criteria, but found that it greatly reduced the environmental benefits and made it cost ineffective.
The “rule of reason” governs, the panel found.
“An environmental impact report does not have to consider alternatives ‘whose effect cannot be reasonably ascertained and whose implementation is remote and speculative,’” Robie wrote.
He also found that the alternatives offered in the report were valid, and that Friends of the River showed no evidence of workable alternatives that weren’t in that report.
The three-judge panel was rounded out by Associate Justices Shama Hakim Mesiwala, a Gavin Newsom appointee, and Rebecca A. Wiseman, a Pete Wilson appointee who retired and is sitting in pro tempore.
While Newsom is counting Friday’s decision as a win, his administration hit a stumbling block with the project this week.
The U.S. Army Corps of Engineers needs certain documentation from the Sites authority before the project can obtain the necessary permits. Because the authority hasn’t yet handed over those documents, its application was withdrawn.
However, if the paperwork is provided promptly, the corps could reach a decision on water quality certification without restarting the permit process.
